High Court rejects James Hardie asbestos appeal

The High Court yesterday blocked an attempt by cash-strapped former
James Hardie
subsidiaries to make it harder for people who contract deadly mesothelioma from renovations or a brief exposure to asbestos to claim compensation.

Since being established in 2006, the Asbestos Injuries Compensation Fund has faced a funding shortfall and in 2008 it challenged a claim for compensation by John Booth, a retired motor and brake mechanic.

Mr Booth had a brief exposure to asbestos as a child helping his father with home renovations and from brake linings. AICF, which manages the liabilities of former Hardie subsidiaries Amaca and Amaba, said Mr Booth could not show exposure to the companies’ asbestos in the brake linings had caused his mesothelioma. It said epidemiological studies showed no greater incidence of the disease among mechanics than the general public.

But, in a majority decision, the High Court ruled there was sufficient evidence to justify a finding by the Dust Diseases Tribunal of NSW in favour of Mr Booth. It ruled the judge was entitled to accept Mr Booth’s evidence that his cumulative exposure to asbestos – including from Hardie’s products – caused his condition. The tribunal had awarded him compensation of $326,640.

“A finding that a defendant’s conduct has increased the risk of injury to the plaintiff must rest upon more than a mere statistical correlation," Chief Justice
Robert French
said. “It requires the existence of a causal connection between the conduct and the injury, albeit other causative factors may be in play."

In 2006 James Hardie agreed to pay 35 per cent of its net operating cash flow into the fund. But, as a result of the financial crisis, the fund required a $320 million loan from the NSW and federal governments.

Mr Booth’s lawyer, Gerard McMahon of Turner Freeman, said the fund was predicated on the assumption there would be 20,000 claims by 2040 – most of which would be home renovator cases.

“What Mr Booth’s expert evidence showed was that all of his asbestos exposure caused his mesothelioma and that Hardie’s share of that lifetime of exposure was enough for Hardie to compensate him for it," he said. “What Hardie was trying to do was unravel the expert medical evidence. By muddying the waters and arguing that Mr Booth couldn’t actually prove Hardie asbestos caused his mesothelioma, then in future cases Hardie could use the same argument to defeat those claims,particularly home renovator type claims."